President Obama's White House lawyers played a critical behind-the-scenes role in brokering an agreement that requires George W. Bush's former aides Karl Rove and Harriet Miers to testify before Congress about the mass firings of U.S. attorneys, according to congressional and White House sources.
Obama's aides were anxious to put a stop to an ongoing court battle over executive privilege that could have backfired on them, said the sources, who asked not to be identified talking about sensitive matters.
The active involvement of Obama White House counsel Gregory Craig and his associates in pushing for a settlement shows how stark positions taken during the campaign often look different when a new president has taken office. As a candidate last year, Obama sharply criticized the Bush administration for making sweeping claims of executive privilege to shield testimony about the U.S. attorney firings. "This blanket notion that you can't subpoena White House aides where there's evidence of genuine wrongdoing I think is completely misguided," he said last year.
But if the dispute over executive privilege hadn't been settled by Wednesday night, Obama's lawyers would have been put in the uncomfortable position of having to defend Rove and Miers in court. The alternative would have been to accept the possibility of a judicial ruling that might have impinged on the confidentiality of their own discussions about sensitive issues should those discussions later become the subject of congressional investigations.
Craig even faced the politically embarrassing prospect of being named (along with Miers and possibly Rove) as a defendant in the court case, given that five boxes of documents about the U.S. attorney firings have been sitting in his office for the past six weeks. Craig became the official custodian of the documents, which have never been made public, after Jan. 20.
As a result, Craig at times took a hard line in trying to get both sides to make concessions, the sources said. At one point this week, he even told House Democratic lawyers he would authorize Obama's Justice Department to oppose them in court if they didn't back down from some of their demands to complete access to the material.
But in the end, it would appear, it was Bush's lawyers, represented mainly by former associate White House counsel Emmett Flood and his former boss, Fred Fielding, who made the most concessions. Under the agreement, lawyers for Rep. John Conyers's House Judiciary Committee will get immediate access to most of the White House documents in Craig's office. But four documents that cover direct discussions with President Bush about the U.S. attorney firings will still be withheld. The contents of these documents will be described by the former president's lawyers to the House.
Then, after the documents are reviewed, Rove and Miers will be questioned in private by lawyers for the Judiciary Committee, with a transcript of the interviews made. But their testimony will not be given under oath and it will not be in public—at least not initially. The judiciary panel will have the right to call the witnesses again later to testify in public if they wish, though this seems unlikely in the case of Miers; her former position as White House counsel will allow her to invoke some attorney-client privileges. House lawyers say the fact that the witnesses will not be testifying under oath is not particularly significant because they can still be criminally charged with making false statements to a congressional committee if it can be proved that they lied.
The key to how far the matter goes almost certainly rests in the contents of the documents. A Justice Department inspector general's report last year found that there was potential evidence of criminal wrongdoing in the firing of at least some of the U.S. attorneys—especially David Iglesias, the chief prosecutor in New Mexico, who was dismissed allegedly after state Republicans complained to Rove that Iglesias wasn't moving aggressively enough to bring vote-fraud prosecutions that would aid the party's electoral prospects in the state. The inspector general's report led then-Attorney General Michael Mukasey to appoint a special counsel to investigate.
But even the Justice inspector general was never able to interview Rove or Miers and wasn't given complete access to some White House documents, especially an internal counsel chronology about the firings that was prepared by a White House lawyer. That memo will now be turned over to the House committee.
Wednesday's agreement allowed all sides to claim victory. In a statement, Conyers called the deal "a vindication of the search for truth" about the U.S. attorney purge. Craig said in a statement that the agreement was the product of a "tremendous amount of hard work, patience, and flexibility on both sides," and that Obama was "pleased" that the parties were able to resolve their dispute. Bush's lawyers could not be reached, but even Rove's lawyer called the deal "good news" and said his client "looks forward to addressing the committee's concerns."
Rove's lawyer, Robert Luskin, did acknowledge that even he has not been given access to the documents in question, which are believed to include internal e-mails about the U.S. attorney firings that either mention Rove or were sent to him. Whether Rove will still be looking forward to testifying after those e-mails are turned over to congressional investigators is, at the moment, the biggest question mark hanging over the case.